On Oct. 25, 2000, more than 25 young Tamils at a rehabilitation centre in Bindunuwewa near Bandarawela in the south-central part of the island were attacked and killed by a Sinhalese group. Who were the actual culprits? Who were their masterminds? To these questions, Sri Lanka's justice system has no answers.

Likewise, after nearly five years, the survivors of this massacre and the relatives of the dead are still left with these questions unanswered. This most horrendous act of killing young people, who were in a rehabilitation centre that was under the protection of the Sri Lankan government, has proved only one thing: the Sri Lankan system of justice is guilty of ensuring immunity for offenders.

Forty-one people were charged with participating in the massacre. However, the Sri Lankan courts have gradually acquitted all of these people on the basis that there was no evidence to convict them. The last of these acquittals occurred on May 27, 2005, when the Supreme Court acquitted the remaining accused on the basis that the evidence against them lacked merit.

That the massacre took place, killing 27 detainees and injuring 14 others, is not in doubt. That the modes of killing were so ugly and cruel is also not in doubt. That the Sri Lankan government was responsible for the protection of these detainees is also well established. However, just who the actual perpetrators of this heinous crime were, the Sri Lankan justice system has been unable to resolve.

“Bindunuwewa: Justice Undone?”

Alan Keenan

(for publication in the Law and Society Trust’s State of Human Rights 2004)

[size=109]On Oct 25th 2000, a mob of unknown size stormed the Government’s Rehabilitation camp at Bindunuwewa, 5km north of Bandarawela town. After a fury of violence lasting anywhere from thirty minutes to an hour, unrestrained, and to a significant degree supported, by the local police stationed to protect the camp and its inmates, 27 Tamil detainees were left dead, and another 14 injured, some of them very seriously. Three or four days of violence between Tamils and Sinhalese in the surrounding hill country followed the attack at Bindunuwewa.

In the wake of this violence, and the national and international outcry at the murders at Bindunuwewa, the government announced a series of investigations. A Commission of Inquiry1, comprising the sitting Appeals Court Justice P. H. K. Kulatilaka, was appointed by President Kumaratunga on 8 March 2001 and held public hearings between May and October of that year. The Commission’s report was completed in November 2001 and officially handed over to the President some time in early 2002, but it has still not officially been released to the public.2 Meanwhile, as the Commission was gathering its evidence, investigations by the Criminal Investigations Division (CID) of the Police and criminal proceedings by theAttorney General’s Department got underway, culminating in the indictment on 25 March 2002 of 41 suspects, among whom were 10 members of the police. The trial of the 41 suspects3 began in July 2002 in the form of a trial-at-bar before a panel of three judges at the Colombo High Court.4 Testimony ended in January 2003, and all hearings were concluded by early May 2003. The verdict announced on July 1 st 2003 convicted and sentenced to death five of the accused, including two police officers.

When the Colombo High Court announced the long-awaited verdicts on July 1 st, 2003 , reactions were swift, and divided. Some human rights lawyers and activists were quick to announce their satisfaction that justice had been done. According to one Tamil lawyer who had followed the case closely, the judgment was “a victory for the rule of law,” given that it was one of the few human rights or massacre prosecutions in which there has been a conviction.5 Another long-time human rights activist was quoted as saying that “On this massacre, the law took its normal course and the suspects after trial were convicted. But unfortunately this was not so in several other similar cases… All these should be expeditiously disposed of in a similar manner as the Bindunuwewa case. The rule of law should be applicable to everyone irrespective of whether they are politicians, members of the armed forces or police.”6 While some expressed disappointment that other, higher ranking officers hadn’t in fact been prosecuted, the judgment was nonetheless felt by many to be a rare victory against impunity for officially sanctioned violations of human rights.

Yet even as general satisfaction was expressed by some, others were outraged. Scenes of the two convicted policemen, one of them wailing in shock and despair, and both protesting their innocence, were shown on TV and were featured on the front of all the next day’s newspapers. Both officers – Inspector Senaka Karunasena and Sub-Inspector Tyronne Ratnayake – proclaimed loudly that senior officers were at the scene of the crime when the massacre had taken place and had unfairly made them their scapegoats. The English and Sinhala language media gave much highly sympathetic coverage to the plight of the two officers and their suffering families. The effects of the verdict were especially strong in and around Bandarawela, located just three kilometres from Bindunuwewa. Prominent businessmen, lawyers, and other local leaders immediately formed a defense committee for the five convicted, promising to raise money for their legal appeal and to support their families. Public meetings were held, moneys were raised, and outrage at the injustice was expressed widely.7 Frequent mention was made of the fact that the two senior officers – Headquarters Inspector Jayantha Seneviratne and Assistant Superintendent of Police A. W. Dayaratne – escaped any punishment while their junior officers were made to take the fall. The fact that Sinhala officers were being sentenced to death while “Tiger terrorists” were being allowed free reign under the terms of the ceasefire agreement with the government was also a frequent source of complaint. From this perspective, the verdicts were seen as an affirmation of business as usual, rather than being any kind of blow against impunity.

What is perhaps most striking about the case, in the end, is that neither of these diametrically opposed perspectives can simply be dismissed. From the very beginning, a thick cloud of ambiguity and confusion has surrounded the case, some of which is likely to remain for the foreseeable future, and perhaps forever. Still, with the conclusion of the trial much about the case and the events that put Bindunuwewa on the political and legal map has now been clarified and can be told with some degree of certainty. Through close analysis of published and unpublished legal documents, newspaper articles, and personal interviews with many people with first hand knowledge of the camp and the legal process, it has been possible to piece together the major elements of the case.8 Of course, it is important to state the none of the available documents or statements can simply be taken at face value. This is especially true of the testimony before the Commission of Inquiry and the Trial-at-Bar, where witnesses had had a lot of time to arrange their stories, as well as being obvious targets for intimidation. However valuable the official record is, then, the real story could still be different in important ways from the one these documents tell.

The Attack

After being away for four days, the Officer-in-Charge (OIC) of the Rehabilitation Centre, Captain Y. K. Abeyratne, returned to a tense camp on the evening of 24thOctober. Many of the forty-one inmates – all of them Tamil men and boys, ranging in age from twelve to their mid-thirties – began to complain of various small grievances. These culminated in a collective protest at being held beyond what they thought would be their dates of release from detention, which eventually became a demand for their immediate release. The shouting soon turns physical – a shot is fired by one of the police stationed to guard the camp, one inmate attacks and slightly wounds the second in command of the camp, Lieutenant P. Abeyratne (no relation)9. A hostage-like situation ensues, with Captain Abeyratne apparently prevented by the inmates from leaving the camp while the second in command, Lieutenant Abeyratne, escapes the camp and announces to neighboring villagers that “the Tigers” have attacked him and will be attacking the village. Lieutenant Abeyratne then travels to the Bandarawela Police station and alerts them to the events in the camp. Headquarters Inspector (HQI) Seneviratne, along with Inspector Karunasena and about a dozen other police quickly head to the camp.10 A disarmed HQI Seneviratne is allowed into the camp, where he negotiates with the inmates and reaches a temporary calm, agreeing to remove the police post that is within the camp premises. Captain Abeyratne assures HQI Seneviratne that everything will remain under control as long as the police protect the camp from the crowds of Sinhala villagers who have gathered around the camp since the altercation began. The situation eventually calms down later in the evening, as the crowds around the camp are dispersed by a small Army contingent sent from the nearby Diyatalawa Army camp. The army returns to barracks sometime after midnight, leaving a small band of police standing guard overnight.

By 6:45 the next morning, well-armed police reinforcements begin to arrive and are stationed at various points around the camp.11 At about the same time, crowds once again begin to gather. A bus is stopped and its passengers are asked to join the protest against the camp. Others arrive on foot and in cars and lorries – perhaps spurred in part by posters that sprung up overnight featuring racist slogans calling for the violent removal of the camp and its inmates. Eventually a sizable crowd has gathered – estimates range from 500 to 3,000 – many of whom are armed with sticks and knives and poles (but none with any firearms). At some point around 8:30 am, the camp is stormed by some portion of the crowd. The inmates are attacked and killed in multiple and gruesome ways – hacked and clubbed to death, their bodies dismembered and burned, some even burned alive. The police not only fail to prevent the attack, but some even partake in the massacre, shooting at least three of the inmates – and killing one of them – as they flee their pursuers. A number of those detainees who reach the apparent safety of a police truck are subsequently attacked, and one of them killed, while the police look on. None of the attackers are arrested. No police and very few of the attackers are injured. Twenty seven of the detainees were killed. Fourteen were injured, some very seriously. By the time the riot squad arrives from the Bandarawela police station and the Army arrives from the nearby Diyatalawa camp around 9:30, the violence is all over. The wounded are taken to a variety of different hospitals.12

Almost as soon as the attack was over, a number of competing narratives and explanations began to vie for supremacy in the public sphere, feeding off the lack of clear information available from trustworthy sources. Among the most popular initial stories were two diametrically opposed accounts. The first held that the attack was actually the intended result of an LTTE conspiracy, instigated by a recent arrival at the camp, the immediately infamous “Anthony James.” Phone calls he made from the camp to contacts in Batticaloa the evening of the 24th and morning of the 25th are interpreted by some as evidence of his dangerous LTTE connections and involvement in the attack.13 An opposing account held that there were in fact many more inmates killed, their bodies and identities hidden in a plot organized and carried out by the Police and Army, and perhaps government politicians. There has yet to be uncovered any convincing evidence for either of these conspiracy theories 14 While Anthony James did apparently help lead the initial protests on the evening of the 24th, there is no available evidence that he was an LTTE plant – and no evidence more generally, that the LTTE had any hand in organizing the detainees’ agitation, or that it was intended as a deliberate provocation. Similarly, there is no evidence that there were any more than 41 detainees in the camp at the time of the attack or that there were any additional victims not acknowledged by government authorities.

On the other hand, there are important indicators of some degree of organization behind the attack by the “villagers” – people were needed to write and post the hate-filled posters calling for the camp’s violent destruction, and someone made calls to bring people from neighboring villages and the town of Bandarawela to join the crowd.15 The fact that there had been a significant agitation by Sinhala nationalist parties during the campaign for the October 10, 2000 Parliamentary elections, some of it explicitly calling for the camp’s closure, offers further grounds for suspicion. The fact that the Commission showed no interest in pursuing these leads, and that whatever CID investigations into such connections there might have been were never made public and bore no fruit has left this brand of conspiracy story hard to fully discount. We will return to these points later.

The Camp and the Detainees

Before the causes and consequences of the attack can fully be analyzed, it is important to understand the nature of the Bindunuwewa rehabilitation camp and the basis on which the 41 detainees were held in the camp.

The Bindunuwewa camp was one of three “rehabilitation centers” that operated under the auspices of the Commissioner General of Rehabilitation.16 However, like the other two rehabilitation centres, Bindunuwewa was actually administered by the National Youth Services Council, which in 2000 came under the auspices of the Ministry of Sports and Youth Affairs.17

The job of determining both eligibility for rehabilitation and an inmate’s period of detention belonged to an Advisory Committee that was appointed by the President under the terms of the Emergency Regulations. The Committee worked closely with the Secretary to the Ministry of Defence. How exactly the Committee made its decisions depended on whether the inmate arrived at Bindunuwewa as a “detainee” held under the terms of section 9 of the Prevention of Terrorism Act (PTA) or Regulations 17-19 of the Emergency Regulations (ER) then in force, or as a “surrendee” who had handed himself over to the police or armed forces.18 None of the inmates had been convicted, or even charged, with any offence.19 In the case of those detained under the PTA or ER, the Secretary to the Ministry of Defence would consult with the four-member Advisory Committee20 to determine the suitability of a given person for rehabilitation and the period of rehabilitation. The resulting “rehabilitation order” was required to specify the length of rehabilitation/detention, but in the case of detainees there was no maximum period prescribed by the regulations establishing such a rehabilitation order.21 There was thus a sizeable amount of ambiguity about the length of “rehabilitation” for detainees.22

In the case of “surrendees,” the terms of the Emergency Regulations are more precise. Surrendees are required to be handed over to the Commissioner General of Rehabilitation and assigned to a rehabilitation centre within ten days of their surrender. Within that same ten day period, the officer to whom the surrendee has surrendered must inform the Secretary to the Ministry of Defence of the fact of surrender and of the handing over to the Commissioner General. At this point, the Advisory Committee is tasked with considering the specific case of the surrendee and determining both his or her eligibility for, and period of, rehabilitation. This process, which generally takes at least a number of months, would happen even while the surrendee was being held at one of the rehabilitation centers. If recommended for rehabilitation, a surrendee’s initial term of detention would range from three to twelve months, with a provision that allowed the Commissioner General to recommend additional rehabilitation in increments of three months, up to an aggregate period of 12 additional months.23 In sum, surrendees could be held for a maximum of two years. Thus even in the less ambiguous cases of surrendees, the process was complex and fluid enough for it to be difficult for a given inmate to be certain when she or he would be released.

The fact that the most serious complaints lodged with Captain Abeyratne on the evening of 24 October concerned the belief of many inmates that they were being held beyond their dates of release should thus have come as no surprise. While there is no evidence that these beliefs were accurate in the case of any particular inmate, the fact that there was no mechanism for making clear the final release dates for the inmates certainly contributed to their anxiety and restlessness. Indeed, there had been a history of complaints along these lines at Bindunuwewa and the other camps. According to testimony before the Commission given by the Deputy Commissioner General of Rehabilitation, Col. M. A. Vipulagune, sometime in the year preceding the attack the inmates at Bindunuwewa had given Col. Vipulagune and the camp administrators a petition requesting that married inmates be released as soon as possible and that the others be released after six months. Vipulagune testified that he had handed the petition over to the Ministry of Defence, which had replied that it was unable to adjust the periods of detention.24 The Commission report further states that during a visit to the women’s centre, “Meth Sevana,” the inmates there said that they were not aware of their release dates but would like very much to know when they would be able to return to their families.

Other factors further complicated matters. First, the category of “surrendee” includes those who give themselves over to the police or security forces “through fear of terrorist activities.” As the Commission points out, it is wrong to consider them as surrendees, “because they have neither committed nor are suspected or accused of committing any offence. They are persons seeking protection… [and therefore] should not be housed in a rehabilitation centre meant for ‘detainees’ or ‘surrendees’.”25 Indeed, the Commission report points out that one of the fourteen survivors of the Bindunuwewa attack fell into this category, having fled the LTTE after being arrested/abducted by them during a family visit to the Wanni. As someone who was attempting to escape the control of the LTTE, the Commission rightly argues, he should never have been held against his will.

Second, the Commission points to the more basic problem that the Rehabilitation Centres mixed “detainees” and “surrendees,” whose situations are obviously very different.26 While those who surrender have in one way or another rejected the LTTE, detainees often maintain strong loyalties to the LTTE.27 The meaning and nature of appropriate “rehabilitation” would obviously be very different for these two sets of inmates. With respect to a related possible source of difficulty, the Commission report goes into detail about the dangers posed by the fact that the LTTE might in the guise of a “surrendee” plant a spy or “hard-core” cadre in the camp in order to undermine its operations. This danger is increased by the fact that a surrendee can remain within the camp for months before the Advisory Committee actually reviews his record – and even such background checks are far from foolproof. What’s more, even within the category of “detainee,” there were young people with a wide range of different experiences: some had actually been members of the LTTE, but others were simply picked up on “suspicion” of “terrorist activities” with little or no evidence to support the suspicion.28 Finally, the fact that children as young as ten were housed together with men in their mid-thirties is not only less than ideal from the standpoint of rehabilitation, but is also a clear violation of the international Convention of the Rights of the Child, to which Sri Lanka is a state signatory.

In short, the rehabilitation system was founded on a less than consistent or logical set of legal procedures. And the centres’ actual activities, in turn, were a far cry from the “internationally acclaimed” models of “rehabilitation” that the Foreign Ministry publicized as part of its campaign against LTTE use of child soldiers.29 “Rehabilitation” at Bindunuwewa consisted in a combination of vocational training, regular religious observance, basic education in arithmetic, Tamil, English, and Sinhala for the younger detainees, and regular community service – but no real psychological counseling.30 Captain Abeyratne was, however, like his counterpart at the Telipilai camp, often quite helpful at arranging jobs for the inmates once their detention was over. In practice, then, “rehabilitation” was at best a way of offering the inmates a transitional space away from the LTTE or whatever other factors had led them to be picked up by the police or army on suspicion, and perhaps improving their chance to survive apart from active involvement in the conflict.31

Despite its limitations as a source for “rehabilitation,” however, the consensus opinion among those who had visited and observed the operations of the camp, was that it was fairly well run and the inmates treated relatively well. For example, the Commission’s report cites the testimony of Colin Glennie, at that time the country representative for UNICEF, who had visited the camp in November 1999. In Glennie’s words, “On the whole, the centre was providing good care and rehabilitation in spite of the lack of resources necessary…. The caring attitude of Capt. Abeyratne was particularly commendable.”32 The atmosphere in the camp was certainly not that of a prison. The security was light, the inmates had frequent overnight visits from their families and spouses, and the inmates could also come and go from the camp with permission from Captain Abeyratne. The inmates did the shopping in Bandarawela town for the food that they themselves cooked for their meals. While some reports have emerged of excessive and unfair corporal punishment inflicted by the senior camp staff, it is clear that the camp was not an especially hostile environment, particularly in relation to the state of Sri Lanka ’s formal prison system.33 Nonetheless, power was not absent from the camp dynamics: the camp was clearly designed to turn rebellious Tamil youth into more docile subjects of state power, and the requirement that the inmates address the camp OIC with the words “Shanti” and palms folded before them is only the most obvious of what was a more systematic set of patronizing relationships.34 That some inmates, particularly the older and married inmates, might have found such dynamics humiliating would not be surprising.35

From evidence presented at the Commission hearings, as well as post-attack reports from other sources, it nonetheless seems clear that the inmates maintained cordial relations with the local community. The inmates performed regular community service, or shramadana, for their neighbors and took part in local religious festivals; two former detainees were living working peacefully in the Bandarawela town at the time of the attack; local residents even took part in games and festivities within the camp, as well as making offerings (dana) to the inmates as part of their own religious observances. Other than reports of some initial hostility to the introduction of LTTE cadre to the camp in 1993, there seems to have been no serious complaints from their Sinhala neighbors prior to the October 2000 election campaign, when the local Sihala Urumaya affiliate began to agitate against the camp.36

The Commission’s Findings

The Events of October 24th

That there were problems in the camp – both in its administration and in its very conception – prior to the attack is thus clear. But that it had functioned for seven years without serious trouble is also undisputed. How did a small incident within the camp spiral out of control and lead to such an outburst of terror and violence?37 To answer that question, the Commission’s report begins with the events of the evening of October 24th, when a portion of the inmates began lodging their complaints with Captain Abeyratne, who had just returned after four days away, during which time Lieutenant Abeyratne had been in charge. Eventually the inmates’ complaints turned to vandalism, as Captain Abeyratne was unable to clarify their terms of detention or guarantee their early release. As some of the inmates began to break some of the camp’s lights and do damage to the camp buildings, two shots were fired, apparently in the air, by the police guards stationed at the camp. According to the Commission – accepting here the evidence of the second in command, Lieutenant Abeyratne – the shots were fired only after he had been attacked and wounded on his side and shoulder. Other testimony, from Captain Abeyratne and one of the inmates, places the attack on Lieutenant Abeyratne after the shots had been fired. For the commission, however, the inmates were clearly at fault for protesting so violently, and the police were in their rights to fire in the air. The Commission report also clearly locates a major portion of the responsibility for the inmates’ revolt in Anthony (Anton) James. He is named as the ring leader of the agitation. Furthermore, the Commission makes much of the fact that he was a dangerous anomaly in the camp: a “hard core” LTTE cadre, who had served with the LTTE for 13 years and taken part in numerous attacks on the Sri Lankan army and police. That he was in the camp was a serious breach of security to begin with, the Commission report argues.38

The Commission goes on to fault the Bandarawela HQI and Captain Abeyratne for agreeing to the inmates’ request that evening to remove the police post within the camp. This not only left the inmates in virtual control of the camp, but by doing so it sent a very dangerous signal of weakness to the local villagers. The police allowed themselves to look powerless. An equally big mistake, according to the report, was Captain Abeyratne’s insistence to the Police, and later to the Army, that things were under control in the camp. Either Abeyratne was fooling himself, or else he was embarrassed at losing control in his own domain and didn’t want to ask for help. But the Commission argues that his failure that evening to alert his boss in Colombo , the Deputy Commissioner of Rehabilitation, Col. Vipulagune, closed down one avenue of possible intervention. And his refusal later that night to accept the offer by the head of the Army detachment – which had just cleared away the villagers surrounding the camp – to enter the camp and “settle matters” with the inmates was another lost opportunity to show the villagers that things were under control and there was no reason to be afraid.39

What then were the effects of the incidents within the camp, and the police and army responses to them, on the local community? The story the Commission tells, based on testimony from inmates, villagers, police, and others, is as follows. Word that Lieutenant Abeyratne had been attacked and injured – he had conveniently left his blood stained shirt at a neighboring house – quickly spread throughout the area, together with Lieutenant Abeyratne’s warning that “the Tigers” were going to attack the village.40 This rumour, together with false reports that some Tigers had escaped from the camp, was actively endorsed and spread even by the police posted outside the camp that night.41 Such stories were particularly powerful given the popular fears and hatred of the LTTE. (These emotions had recently been strengthened by the Sinhala nationalist tenor of much of the election campaign in the preceding weeks, as well as recent funerals in the area of three soldiers and one Army Major.) The withdrawal of the police post within the camp and the warnings from the police themselves of possible attacks fed distrust of their ability to protect the camp’s neighbors.

In addition, the Commission finds clear evidence that a significant degree of organizing took place in the twelve to fourteen hours between the initial protest in the camp and its violent destruction. Lieutenant Balasuriya, who led the Army detachment that dispersed the crowds on the 24th night, testified before the Commission that villagers told him they were planning to demonstrate against the camp the next morning. A telegram announcing such a demonstration and signed in the name of the Sapugasulpatha villagers was received by the District Secretariat at eight in the morning of the 25th. Further evidence reveals that at least fifteen of the anti-camp posters that went up on the 25th morning were made by residents of Aluthgama, another of the camp’s neighboring hamlets (one villager’s handwriting was matched to the posters). And finally, the Commission report confirms that vehicles were used to transport protesters to the camp – at least 10-15 vehicles (vans, buses, and three wheelers) were seen that morning at the entrance to the Vidyapeetaya Technical College that bordered the camp. The Commission reports suggests these vehicles might have been the work of “extremist elements to exploit the situation to achieve their own objectives.”42

The Events of October 25th

The Commission report also offers some further useful points of clarification about the events of the morning of the 25th. Testimony by local residents seems to have established that some 15-20 inmates were visible early that morning outside their barracks carrying poles and screwdrivers.43 The crowd was heard shouting threats of murder. Given the murderous slogans written on the posters that went up in and around Bindunuwewa that morning – e.g., “Feed Tiger flesh to our dog” – it is clear that some in the crowd had come to kill, not just demonstrate. The violence was initiated by the crowd outside as stones were thrown at the inmates. The inmates reacted to the provocations by exploding a gas cylinder within the camp. While this initially succeeded in frightening the crowd, its ultimate effect seems to have been to further inflame things, as the crowd soon thereafter stormed the camp as the police looked on. Witnesses state that large crowds were standing outside the camp’s main gate prior to the attack with armed police standing amidst them, doing nothing to disperse them, or keep them at bay.

That there was an utter failure on the part of the police stationed around the camp is beyond dispute. The Commission report strongly criticizes the two most senior police officers in the area – ASP Dayaratne and HQI Seneviratne – for a series of failures. This begins with their failure to stay at the camp overnight, which would have sent a strong signal to the villagers; indeed, they didn’t even wait to get a report back from the Army contingent sent to disperse the crowd on the night of the 24th. Their failures were further compounded when they chose not to send the riot squad from the Bandarawela police station, even after being warned the next morning by the highest ranking officer stationed overnight at the camp, Inspector Karunasena, that large crowds were gathering and buses had been stopped near the camp. The ASP and the HQI failed to send any additional police from the Bandarawela station.
Even at the last moment, the inmates could have been evacuated from the camp.

Once the attack began, no attempts were made to stop the invading crowd. Not a single arrest was attempted or made by a single police officer (out of more than 60 stationed at various points around the camp). Given that not all of the hundreds, perhaps even thousands, gathered at the camp were armed, the Commission argues that the police could, as a last resort, have shot at the relative small number of the crowd who did have weapons -- what the report calls “the criminal elements.”44 Instead the only shots fired seem to have been at the inmates – and their deaths were clearly not accidental, as the one inmate who died from by gunshots had seven bullet wounds on his body. The Commission is particularly critical of Inspector Karunasena – whom it holds was the highest ranking officer at the start of the attack – for ordering the police to shoot: “the order to shoot by Inspector Karunasena and the act of shooting by three policeman consequent to that order were more than what was warranted in the circumstances,” the Commission states.45 Precisely what happened with the shooting remains ambiguous. Karunasena admits ordering his men to fire in the direction of a number of inmates as they were running towards his officers in an attempt to escape their pursuers. But what he intended by this order is not clear. Did Karunasena in fact order his officers to fire on the inmates? Did he order them to fire at those who were chasing the inmates, as he implied in his Commission testimony, but the inmates were hit instead? Or did he order this officers to fire in the air, as he claimed during the trial, and some of them choose to fire at the inmates? The fact that Karunasena didn’t immediately take action or publicly denounce his officers for hitting the three inmates and killing one of them is suspicious, to say the least.46

However, whether Inspector Karunasena really wasin charge at the time of the attack remains in doubt. No one disputes that Karunasena was placed in charge of the police detachment left at the camp overnight, or that he was in charge of initially detailing the additional squads of police that arrived from various other local police stations at about 6:45 on the morning of the 25th. After that, things get more murky. According to Karunasena, both ASP Dayaratne and HQI Seneviratne were there at the camp from 7:30 am onwards.47 Another police officer, Sub-Inspector N.S. Walpola (who along with Karunasena, was later indicted and put on trial), identifies the ASP as being near the barracks before the attack.48 Of course, the interests of both Karunasena and Walpola would be served if it was accepted that their superior officers were on the scene. But other, less interested parties, also identify the ASP and HQI as being there at least by the time the attack was in full swing. Captain Abeyratne stated in his testimony before the commission that he saw ASP Dayaratne there at the very early stages of the attack, before the crowd had had a chance yet to set fire to the camp (many of the inmates were either burned to death or had their bodies burned afterwards). And according to an even more reliable witness, the Bandarawela Divisional Secretary, W.N.R. Wijeyapala, the ASP and HQI were both well inside the camp when Wijeyapala arrived, soon after 8:30 am, as the attack was actively underway.

Thus, if Captain Abeyratne’s and the Divisional Secretary’s testimony are correct, the ASP and HQI were there at least early enough to be as responsible for the shootings and killings of the inmates as any of the other police officers. And indeed, the Commission accepts that the ASP and HQI were at the scene while the attack was going on: “I have no doubt that … both the ASP and HQI were present in the Rehabilitation Centre while the crimes were still taking place and assailants were freely moving about carrying weapons inside the Rehabilitation Centre.”49

While the Commission report is severely critical of the ASP and HQI for their inaction, which it classifies as “dereliction of duty,”50 it nonetheless presents their failure as one of negligence and indifference, rather than the result of foreknowledge, acceptance, or willful complicity in the attack. “Evidence which I have already discussed in my report do establish that ASP Dayaratne, HQI Jayantha Seneviratne, Inspector Karunasena, Sub-Inspectors Walpola, Ratnayake and Abeynarayana were around whilst the crimes were committed inside the Rehabilitation Centre [sic].”51 Of these officers, the Commissioner goes on to write, “I have come to the conclusion that the conduct of [these] officers on 25.10.2000 should be the subject of a disciplinary inquiry, for the reason that their inaction, and attitude at the time of the incident is indefensible. There is ample evidence that they were present at the time of the incident and made no effort either to avert the attack or to disperse the mob and arrest the offenders.”52 Without offering any explanation, however, the report chooses to disregard the claims of Karunasena and Walpola that their superior officers were there from the beginning, choosing instead to accept the ASP’s and HQI’s claims that they were on their way to a disciplinary hearing in Badulla when they got the news of the attack, and only got to the scene after it was too late to prevent the violence.

There is significant circumstantial evidence, however, to suggest that more might well have been going on than the Commission’s framing of the events allows one to see.

A host of evidence exists that implicates the hierarchy of the Bandarawela police in a pattern of animosity against the inmates, likely foreknowledge of the attack, and falsification of evidence afterwards – which adds up to something significantly more than negligence.For instance, with respect to the actions of the police, there is strong evidence that HQI Seneviratne was angry at the way the inmates treated him when he visited the camp on the evening of the 24th. According to videotaped interviews with the HQI and with others who were there at the scene, it is clear that the HQI felt humiliated by his being forced to enter the camp unarmed and negotiate with what were, after all, suspected and surrendered LTTE cadres. According to one reliable source who was at the scene, the HQI denounced the detainees when he was leaving the camp that evening. In a voice loud enough to have been heard by the crowd that had gathered around the camp, the HQI is said to have pronounced something to the effect that “these people are bad people, they overran the police post, they forced me to come in without a gun and put knives against our throats.”53 In addition, we know from the Commission report and other sources that the anti-camp posters, with their homicidal and bitterly anti-Tamil slogans, had gone up the night of the 24th not only around the camp but in Bandarawela town, too, and that the police would certainly have seen them. We know from eyewitness testimony before the Commission that the police stationed at the camp on the 24th were themselves spreading rumours that the Tigers would attack the village. And the Commission has also established that the ASP and HQI lied when they claim to have fired tear gas during the attack. (Indeed, they had chosen not even to supply their police at the scene with any tear gas at all).54 Not only did they lie to the investigating authorities, but CID discovered that they had ordered their men in the days immediately after the attack to discharge some tear gas in a nearby quarry, so as to have evidence that they had done their best to disperse the attacking mob. And finally, we also know that the Bandarawela police deliberately kept their duty logs from being seen by investigators from the Human Rights Commission.

The Commission also failed to investigate and report upon the distinct possibility that the attack was planned, or at least aided, by forces outside the surrounding villages. The Commission report leaves unexamined the identities of the owners of the vehicles that came to the camp the morning of the massacre. The political affiliations of those involved in the attack remain unexplored although rendered relevant in this context by evidence placed before the Commission. Many of the posters bearing racist and anti-camp slogans were written on the backs of People’s Alliance election campaign posters.55 The possible connections with other political forces also remain unexplored: for instance, the role of the local Sihala Urumaya organizer, who lived directly opposite the turn off to the Bindunuwewa camp from the Badulla-Bandarawela road; or reports about the Sinhala nationalist political leanings of some of the homeguards posted to the rehabilitation centre.56

Instead, the Commission report offers blanket assurances that there is no evidence to suggest the attack was planned by outside forces. The Commissioner states toward the end of his report that “I have also placed on the record that this attack was not master-minded or planned by any external forces and that it was not a pre-planned one.”57 Such a blanket statement, without any other evidence in the report that such a possibility had been seriously investigated, is clearly not adequate.

While the Commission report certainly adds much to our knowledge about the massacre and the conditions that led to it, and should be made available to a wide public, the overall framework it employs to interpret the attack obscures many of the deeper political dynamics at work in the camp and the rehabilitation system and largely depoliticizes the attack itself. Unfortunately, what knowledge the report does have to offer had until recently been unavailable to all but a very small handful of people, as the Commission’s report has yet to be released to the public by the President.58

The Trial-at-Bar: 25 March 2002 – 1 July 2003

The Indictment

Unfortunately, many of the most important findings of the Commission don’t seem to have been taken into account in the indictments, framed by the Attorney General’s Department, that constituted the framework for the High Court’s Trial-at-Bar.59 The story of the massacre proposed by the prosecution in its indictments and in the trial follows the general outlines of what is found in the Commission report: it tells the story of a massive crowd spurred into action by fear and rumours of marauding Tigers, and of police who failed miserably in their job of protecting the camp and its inmates, becoming a part of the mob they were supposed to control.60 Yet, crucially, there were no indictments of the ASP or the HQI, despite all the evidence uncovered by the Commission. Nor was anyone prosecuted for any planning, or foreknowledge, of the attack.61 It was, instead, a story of rage and hatred and fear getting out of control and police getting caught up in violent forces they should have kept in check.62

In the indictments handed down in March 2002, 31 local residents and 10 police offers were each accused of 83 counts. The 83 counts were composed of five categories: 1) one count of belonging to an unlawful assembly with the common object of causing hurt to the detainees (section 140 of the Penal Code); 2) twenty-seven counts of murder in prosecution of the common object of the unlawful assembly (section 296 read with section 146 of the Penal Code); 3) fourteen counts of attempted murder of the surviving inmates in prosecution of the unlawful assembly’s common object (section 300 read with section 146 of the Penal Code); 4) twenty-seven counts of murder “on the basis of the Common Intention shared among the doers of the acts of offence” (section 296 read with section 32 of the Penal Code); and 5) fourteen counts of attempted murder on the basis of Common Intention (section 300 read with section 32 of the Penal Code).

The basic legal argument was two-fold. First, that those accused who were identified as members of the crowd and as being armed with weapons constituted part of a larger “unlawful assembly,” which was animated by a common object of attacking and killing or harming badly the inmates. Having a “common object” was here understood not to require explicit agreement between all or any of the members of the assembly, but as a goal that can be ascertained through knowledge of the shared actions and manner of the individuals involved. While the actual involvement in the assembly by each accused must be proven individually, each member of the unlawful assembly takes on a vicarious responsibility for the actions of all the other members.63 Thus the prosecution was arguing for convictions of the accused “villagers” first for being members of the unlawful assembly (count one), and then for the specific acts of murder and attempted murder that the crowd as a whole committed (counts 2-42). They did not have to show that any given accused had committed any specific acts of murder or attempted murder.64

For the police officers among the accused, another strand of argument and evidence had to be added. The case was made that the police posted to protect the camp became members of the unlawful assembly in their failure to act as their legal duty required them to. In standing by as members of the crowd entered the camp and massacred its inmates and in making no attempt to control or arrest any of the attackers, the police came to share in the common object of the unlawful gathering. To make this connection, the prosecution had first to argue that there was ample legal precedent for considering an “illegal omission” to arise from the failure to perform one’s duty, a principle they held was especially well established in cases of homicide.65

Of the villagers charged, all had been identified by eye-witnesses as being at the scene of the crime with weapons in hand. Unfortunately in criminal cases of this sort, where it is neighbor who has to testify against neighbor (and, in one instance, relative against relative), eyewitness testimony can constitute a less than reliable foundation. And indeed, at the conclusion of the Prosecution’s leading of evidence, the Prosecution applied to the court to have charges dropped against 23 of the 41 accused, citing lack of evidence. The withdrawal of charges was due to the failure of four witnesses to testify against their accused neighbors consistent with the statements they had earlier made to the CID.66 One of the ten accused police officers was also discharged at this stage as well.

With respect to the police officers charged, there were problems of a different nature. Of the more than 60 police officers stationed at the camp at the time of its attack, only those of medium rank – Sub-Inspector and Inspector – were charged: they were either those whom witnesses identified as being posted at the main entrance to the camp, or those in charge of one of the detachments sent to guard various other locations around the camp.

This prosecution strategy had two problems. The first and most obvious is the failure to charge either of the two senior officers with any crimes. The Prosecution at the Trial-at-Barchose to endorse the ASP Dayaratne’s and HQI Seneviratne’s position and make them into crucial state witnesses, despite the incriminating evidence available from the Commission Report and other sources. 67 Second, the Prosecution’s choice of police accused meant that at least some of those who were stationed at the camp entrance and who were responsible for the shootings of the fleeing inmates were not charged. Finally, and more generally, the prosecution strategy had another major drawback: it choose to press only the most serious charges – murder and attempted murder – and yet supported it with no other evidence than eyewitness testimony, which was either from other interested parties (e.g., the HQI and ASP) and thus of questionable value, or from those easily intimidated.68 This was a high risk strategy.

The Judgment

Of the remaining eighteen accused, nine were residents from the local area, and of these, the court convicted three. Each was convicted of being a member of an unlawful assembly, and, through their sharing in the crowd’s common motive of death and destruction, each was held responsible for multiple counts of murder, one count of attempted murder, and multiple counts of assault.69 Each was sentenced to death. The three convicted local residents were those whom the court was able to find some convincing evidence of having actually been involved in the attack within the camp, rather than simply being part of the larger crowd surrounding the camp, which the Court held was not sufficient to make one a part of the unlawful assembly. Instead, they held, some more active manifestation of one’s criminal intention – in all three cases it was that of being seen armed and within the camp premises – was required.70

Thus, the fourth accused71, Munasinghe Arachchige Sammy, was spotted by an eyewitness first outside the camp, standing with a club in his hand within the grounds of the Teachers’ Training College (referred to in Sinhala as the Vidyapeetaya) which bordered the Rehabilitation Centre. He was later seen by this same witness inside the camp, still with the club in his hand.72 Later, as the witness was helping to rescue one of the younger inmates, he was struck from behind by a club. When he looked up, the only one around him with a club was Sammy. Thus the justices conclude that there is strong evidence that Sammy, by choosing to enter the camp armed with a weapon, had entered into the common motive of the unlawful assembly. The second of the three local residents, accused number thirteen, D.M.S. Dissanayake, was seen by another eyewitness emerging from out of the Centre grounds with a club in his hand, as the barracks were burning and the attack was coming to an end.73 Finally, the twenty-first accused, R.M. Premananda, a taxi driver in the town of Bandarawela, was convicted on the basis of the most extensive evidence of anyone: two witnesses described driving with him to the camp, seeing Premananda enter the camp while the attack was ongoing, then seeing him reemerge with a bleeding hand, after which one of the two witnesses drove him to a private clinic where his hand was sutured. The doctor at the clinic who treated his hand also testified at the trial and was able to identify the accused.

With respect to the role of the police officers in the attack, the Court accepted the prosecution’s argument that police inaction amounted to an illegal omission that made them into willing members of the unlawful assembly. In the court’s words, “by allowing a large group of people to gather around the camp, allowing them to enter the camp and burn the halls inhabited by the inmates, allowing them to be present with weapons, allowing them to attack the inmates and kill them, allowing them to attempt burning the bodies to tamper with evidence, while silently watching, shows that the Police aided these actions.”74 Crucial to the Court’s judgment on this issue was their finding that, since the attack included the burning of the inmates’ bodies, it must have, from beginning to end, taken something on the order of an hour. This would have given the officers plenty of time to make at least some arrests or otherwise express their rejection of the crime.75 Equally important was the testimony from the survivors that after they had told the police stationed at the camp that they were afraid that the gathering crowd would attack them, they were told to remain in their billets and the police would protect them. Thus the police on duty had ample forewarning and yet had done nothing to disperse the crowd – which the Court holds would have been easily done – or otherwise prevent the attack. For instance, the Court suggests that the Police could have chosen to station some or all of its men immediately around the barracks to which they had themselves asked the inmates to retreat. Instead, once the attack was underway, the Police not only did nothing to prevent it, they actually took part by firing on the fleeing inmates.76

Of the nine police officers still charged when the case went to the bench for judgment, only two were convicted. These were Inspector S.J. Karunasena (the 32 nd accused) and Sub-Inspector T.R. Ratnayake (the 41 st accused). Both officers were convicted in large part because the Court was convinced that they were stationed at the main gate throughout the attack and therefore were at the center of the action: their failure was manifest.

Karunasena, in addition, bore the burden of the fact that he was believed to have been placed in overall command of the police detachment at the Rehabilitation Centre. Thus, to some degree, the Court implicitly relies on a notion of “command responsibility” to hold Karunasena accountable, repeatedly emphasizing his role as the commanding officer and blaming him for the overall failure to protect.77 “This Panel of Judges conclude that defendant 32 had the ability and the means by way of troops to control this situation, and as he failed to do so, he is considered to hold criminal responsibility.”78

In addition, Karunasena is specifically taken to task for the deadly shots that were fired at the inmates running for their lives. In an effort to show that he had in fact taken some action to disperse the crowd, Karunasena stated in his dock statement at the very end of the trial that he had ordered his men to shoot in the air.79 If this is so, then it might suggest that the killing of the inmate was accidental. Yet if that is the case, the court asks, why was it that only inmates were shot, not any villagers? “On the other hand,” the Court writes, “defendant 32 has not stated that anyone shot outside of his orders. Accordingly, this Panel of Judges has to conclude that shooting at the inmates occurred with the knowledge of defendant 32.”80

Sub-Inspector Ratnayake, in turn, is argued to have also been at the main gate with Karunasena at the time of the attack. Two witnesses, both of them Police Constables, are cited as giving testimony that locates Ratnayake at the main gate.81 His inaction, like Karunasena’s, is said to have made him a full member of the unlawful assembly and thus criminally liable.

Both Karunasena and Ratnayake made dock statements in which they stated that the ASP and HQI were present at the start of the attack, and that it had been the duty of their superiors, not them, to order action taken against the attackers. Attempting to escape responsibility, the ASP and HQI have blamed them instead. In both cases, the Court ruled that both defendants and their lawyers had ample time to cross examine the HQI and ASP when they were giving their testimony, but none did. The fact that they both raise this issue for the first time only in their dock statement (where they cannot be cross-examined) is further reason to discount their claims, the Court reasoned.82

The other seven officers were all acquitted. This included Sub-Inspector Jayaratne, the 33 rd defendant, who was stationed under Karunasena’s command at the main gate. The court cites the HQI’s testimony that it was Jayaratne who telephoned him to alert them to the attack on the camp just as he and the ASP were heading to Badulla. “Thus,” the High Court argues, “according to the behavior of defendant 33, he had informed higher officers about the incident at the beginning of the incident, and requested help. Accordingly, it cannot be concluded that defendant 33 held the common motive held by the others gathered to do harm to the inmates, or that he acted with that common motive.”83

The remaining six officers were all judged to have been located too far away from the interior of the camp to have known what exactly was happening: the justices write that “it has been proved that defendants 34, 35, 36, 38, 39, and 40 could not clearly see the camp from the place at which they were positioned.”84 Thus they could not be said to have joined with the unlawful assembly. Interestingly, this group includes Sub-Inspector Walpola, defendant 38, who is acquitted, despite the Commission locating him clearly at the Vidyapeetaya playground, from which large numbers of the crowd surged into the camp, and from which vantage point one could see everything going on in the camp.85 For some reason, however, the prosecution’s written submission makes no specific mention of his location or his specific culpability: Walpola is simply included together with the other 6 officers who were posted elsewhere, some of whom, one could argue, were indeed too far from the scene to have done anything. (Whether this absolves them of all responsibility, however, is questionable, as it’s unlikely that they wouldn’t have heard the noise of the attack and the inmates’ cries, seen the smoke from the burning buildings, and known something was happening.)

Unanswered Questions

The judgment, and the trial as a whole, while it is to be welcomed for the much needed precedent it sets for the punishment of official misconduct and anti-Tamil violence, nonetheless leaves a host of unanswered questions, and raises new ones in turn. These questions can be grouped into two general categories: questions of fact, and questions of law, procedure, and fairness.

Questions of Fact

1. The first questions concerns the basis of the conviction of one of the two police officers, Sub-Inspector Ratnayake. The Prosecution case for locating Ratnayake at the main gate during the attack on the Centre is in fact surprisingly uncertain. The testimony of Police Constable H.L. Kusumapala, who arrived with Ratnayake and other police from the Diyatalawa station at the camp at about 6:45 am , is that he and the rest of the team were positioned away from the camp, midway along the road that runs from the camp to the Agrarian Centre, some 50 metres from the camp. Kusumapala says that after positioning the rest of his team there, Ratnayake continued along the same road towards Bandarawela, which is in the opposite direction from the camp. He then states that while posted near the Agrarian Centre, he heard shouts and noises from the camp and that he was unable to contact Ratnayake because he “had gone down.” According to the transcript of the trial proceedings, Kusumapala stated that Ratnayake “went down the road. I was expecting he would come back.”86 It is unclear, however, what “went down the road” refers to: does it mean Ratnayake went towards the camp? Before the noises were heard? If so, why isn’t this stated more clearly? A second witness, Police Constable T.M. Gunapala, states that he arrived at the Bindunuwewa camp at about 6:30 am , where he met both Karunasena and Ratnayake who were then on the grounds of the Vidyapeetaya.87 He doesn’t state where Ratnayake was during the attack.88

What we know with certainty is that Ratnayake was at the main gate after the attack. He was present while the injured, and perhaps bodies of the dead, too, were placed in a police truck at the conclusion of the attack, some time after 9 am. We know this from a photograph taken by a police photographer, and confirmed by the eyewitness identification of Ratnayake and Karunasena by Police Constable R.D. Mangalasiri. But this is after the attack. And however damning the pictures are – they show the police officers standing at ease next to numerous club-wielding villagers with bodies of victims lying on the ground – they were clearly taken after the attack has largely concluded, so they tell us nothing about where Ratnayake was at the time the attack began. What remains unclear, then, is why the prosecution was unable to offer a stronger case for Ratnayake being at the main gate, or at some other strategic position, when the attack happened. The Commission on its part was certainly convinced that Ratnayake was at the main gate89. During the Commission hearings, one of Ratnayake’s colleagues, SI Walpola, located Ratnayake at the main gate at the start of the attack. It is unfortunate that the evidence of the Prosecution at the High Court trial wasso ambiguous, since it undermines the public legitimacy – and possibly the legal validity – of the conviction by offering grounds – however inconclusive – for Ratnayake and his supporters to claim he was unjustly punished.

2. The use of photographic evidence by the prosecution itself raises a number of important questions. The prosecution accepts that the photographs were taken after the attack had taken place and show no specific crimes being committed. Yet the photos were obviously meant to influence the Court’s opinions about the attitudes displayed, and actions (not) taken, by Karunasena and Ratnayake towards the attacking mob, large numbers of who can be seen in various photographs submitted in evidence. And while the Court doesn’t make reference to them in their judgment, it remains possible that their opinions about the location of Ratnayake were nonetheless affected by having viewed the photos. A further set of questions arises here: if the point of submitting the photos into evidence is to show that the police took no action in the wake of the attack, even as armed attackers were still comfortably mingling amongst the police within the camp, then the photos would seem to implicate the HQI and ASP as well, since they were unquestionably on the scene – even by their own testimony – at the time that the photos were taken. In addition, why was the whole roll of negatives, preferably the originals, not submitted? Based on the testimony of police photographer P.A. Kurukulasooriya, we know that not all of the photographs taken were submitted into evidence and we know that the photos that were submitted were made from negatives that were themselves not the originals, but copied from the first set of “positive” photographs. That second set of negatives was cut up, with only some photographs put into evidence. What, or who, was shown on the missing negatives?90

3. This leads us to the most crucial question of fact: why were no charges filed against the HQI and the ASP? It would seem, based on the findings of the Commission and numerous witnesses interviewed over the past two years of independent investigation, that a strong case might have been made against both officers for having been on the scene from the beginning of the attack. But at the very least, clear evidence exists for charging them with various crimes once the attack had begun. This would include the obvious dereliction of duty in making no arrests, in allowing the deaths of inmates in the police truck parked at the main entrance, in allowing some inmates to be shot, and for the suppression of evidence involved in moving the dead bodies before the magistrate was able to arrive and perform post-mortem examinations. The Court judgment cites this last crime in particular, but blames it insteadon Karunasena, despite the ASP’s own admission that it was he who gave the order to dispatch the bodies.91 Why, then, were no charges filed against the senior officers? Was it because, as one of the State Counsels involved in the case stated in an interview, there was no evidence against them?92 Would no one have testified against them? Karunasena and others certainly did so in their testimony before the Commission of Inquiry. The fact that HQI Jayantha Seneviratne is now the SSP of Traffic at Fort Police Station , a significant promotion by all accounts, is viewed with great suspicion among many in the Bandarawela area. (ASP Dayaratne is now retired.)

Closely related is the failure to challenge the position of the HQI and the ASP through cross-examination, especially by defence lawyers representing Karunasena and Ratnayake. Why weren’t Karunasena and Ratnayake allowed to testify and state their cases under oath, rather than waiting until their much weaker interventions from the dock? Was it because their lawyers imagined – based on the historical record and what they thought was a weak case against their clients – that the police would be acquitted and so didn’t need to take the risk that such testimony would entail (at the very least to their careers as police officers)? Why didn’t they call as a witness the Bandarawela Divisional Secretary, who testified to the Commission that the ASP was there in the camp very early on in the attack? Could these decisions be explained in part by the fact that the lawyers for Karunasena and Ratnayake were also the lawyers for SI Jayaratne, who escaped conviction solely on the basis of the HQI’s own testimony that it was Jayaratne who alerted him to the mob attacking the camp?93

4. The shooting of the fleeing inmates is another crucial point where there remain more questions than answers. The inmate who was shot to death had seven bullet wounds on his body – [/size:cdd3